Haly v Kelly
[2011] QCATA 179
•11 July 2011
| CITATION: | Haly v Kelly [2011] QCATA 179 |
| PARTIES: | Roland Haly (Applicant/Appellant) |
| v | |
| Stacey Kelly (Respondent) |
| APPLICATION NUMBER: | APL120-11 |
| MATTER TYPE: | Appeal |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 11 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Ms Kelly was Mr Haly’s tenant – where Mr Haly claims that Ms Kelly quit the premises giving no notice of intention to leave and leaving the premises in a damaged condition – where a Magistrate found that Ms Kelly had given Mr Haly an appropriate and timely notice and that the house was left in a good condition, and dismissed Mr Haly’s claim – where Mr Haly now seeks leave to appeal that decision – whether leave to appeal should be granted Dearman v Dearman (1908) 7 CLR 549, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Haly owns a house at 88 River Road, Millstream. Ms Kelly was his tenant. Initially he gave her a lease for twelve months and then for another three months from December 2009 to 25 March 2010.
She claims to have given the landlord a notice of intention to leave in the required form, by post, around 19 March 2010 and, then, to have quit the premises but leaving them in good condition.
Mr Haly alleged that Ms Kelly did not, in truth, give him a notice and she left the premises in a damaged and dirty condition. He brought proceedings in QCAT’s Minor Civil Disputes jurisdiction claiming arrears of rent, and the cost of repairs and cleaning. He filed a great many documents in the Atherton Magistrates’ Court Registry and it is not easy to see what his claim there was, or the figures supporting it. It appears he was claiming rent arrears of $1,316.60, costs for repairing alleged damage of $1,779.70, and other costs, charges and outlays for a total $3,641.50.
The matter was heard and determined by a Magistrate, sitting as a QCAT Member, at Atherton on 12 August 2010. After hearing evidence from both Mr Haly and Ms Kelly and looking at photographs, declarations, affidavits and other material presented by each party she concluded that Ms Kelly had given Mr Haly an appropriate and timely notice, and his failure to observe that she had quit the premises for some weeks was explained by his failure to collect his mail. She also accepted evidence from Ms Kelly’s witnesses that the house was left in a good condition. In the upshot, all of Mr Haly’s claims were dismissed.
He seeks leave to appeal that decision. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Here, the learned Magistrate’s decision rested primarily upon two findings of fact: first, that Ms Kelly did deliver a notice of her intention to leave around 19 March 2010; and, secondly, that she left the house in a reasonably clean and undamaged condition.
As to the first finding, the Magistrate said at page 3 of her Reasons that she was satisfied, on the evidence before her, that the tenant had given the requisite notice. By inference, she did not accept Mr Haly’s evidence that he had regularly called at the Post Office and collected his mail in the later part of March and early part of April.
Secondly, the learned Magistrate accepted the evidence of Ms Kelly and two of her witnesses who provided affidavits to the effect that the premises, at the time she left, were clean and tidy.
Mr Haly’s evidence was to a different effect but it is plain the Magistrate was (not unreasonably) reluctant to accept it when the house had a number of defects when Ms Kelly’s tenancy began; some months had elapsed between her departure, and the time of photographs and other evidence upon which Mr Haly relied; and, Ms Kelly’s corroborating witnesses were apparently independent and had gone on oath about their observations.
[10] Findings of this kind by a Tribunal will not usually be disturbed on appeal if the facts inferred at first instance, upon which the finding is based, are capable of supporting the Tribunal’s conclusions, and there is also evidence capable of supporting any inferences underlining them.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at
125-126.
[11] There is nothing in the transcript to suggest that the findings made by the learned Magistrate were not reasonably open to her. She took care to consider all the evidence, and to explain her findings, and no error is apparent.
[12] Once these things are appreciated, it is plain that Mr Haly cannot establish any ground for a grant of leave to appeal and his application must be refused.
[13] That said there is one further matter raised in Mr Haly’s written submissions to the Appeal Tribunal, which should be addressed: he complains, in effect, that the learned Magistrate did not give him an adequate hearing and/or was biased against him. He does not use those precise terms but that is the gist of his submissions. Neither proposition is supported by the transcript: the learned Magistrate gave both parties an opportunity to present their respective cases; on occasions she spoke directly, and indeed briskly, to both parties but there is nothing to suggest that she was not even handed, or that she denied either party a fair opportunity to present its case.
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